United States District Court, D. Massachusetts
GUY LAUTURE AND JEREMY ROSSMEISL, on behalf of themselves and all others similarly situated, Plaintiffs,
A.C. MOORE ARTS & CRAFTS, INC., Defendant.
ORDER APPROVING SETTLEMENT, INCENTIVE AWARDS, COSTS,
AND EXPENSES AND AUTHORIZING NOTICE
Honorable Judith G. Dein United States Magistrate Judge.
matter came before the Court on Plaintiffs' Assented-To
Motion for Approval of Settlement, Service Awards, and
Attorneys' Fees and Costs (“Motion for Settlement
Approval”). After reviewing the Motion for Settlement
Approval, the supporting Memorandum of Law in Support of the
Motion for Settlement Approval (the
“Memorandum”), and the Declarations of Justin M.
Swartz, Gregg I. Shavitz, and Hillary Schwab and supporting
exhibits, the Court hereby finds as follows:
Settlement Is Approved
Court approves and incorporates by reference all of the
definitions contained in the Joint Stipulation of Settlement
Court hereby approves the $2, 900, 000.00 settlement. Courts
approve FLSA settlements that are reached as a result of
contested litigation to resolve bona fide disputes. See,
e.g., Curtis v. Scholarship Storage Inc., No.
14 Civ. 303, 2016 WL 3072247, at *2 (D. Me. May 31, 2016)
(citing Lynn's Food Stores, Inc. v. United
States, 679 F.2d 1350, 1355 (11th Cir. 1982));
Singleton v. AT&T Mobility Servs., LLC, 146
F.Supp.3d 258, 261 (D. Mass. 2015); Scovil v. FedEx
Ground Package Sys., Inc., No. 10 Civ. 515, 2014 WL
1057079, at *1 (D. Me. Mar. 14, 2014).
Here, the settlement meets the standard for approval. The
settlement followed adequate informal discovery and
arm's-length negotiations with the assistance of a
mediator, a former Magistrate Judge from the Eastern District
of Pennsylvania, the Honorable Diane Welsh. Recognizing the
uncertain legal and factual issues involved, the parties
reached their settlement after attending a private mediation
session supervised by Judge Welsh.
Settlement Procedure Is Approved
one-step approval process is appropriate in FLSA settlements
that do not include proposed Federal Rule of Civil Procedure
23 class releases. See, e.g, Koszyk v. Country
Fin. a/k/a CC Servs., Inc., No. 16 Civ. 3571, 2016 WL
5109196, at *1 (N.D. Ill. Sept. 16, 2016); Roberts v.
Apple Sauce, Inc., No. 12 Civ. 830, 2014 WL 4804252, at
*1 (N.D. Ind. Sept. 25, 2014); Bozak v. Fedex Ground
Package Sys., Inc., No. 11 Civ. 738, 2014 WL 3778211, at
*2 (D. Conn. July 31, 2014); Dixon v. Zabka, No. 11
Civ. 982, 2013 WL 2391473, at *1-2 (D. Conn. May 23, 2013);
Campbell v. Advantage Sales & Mktg. LLC, No. 09
Civ. 1430, 2012 WL 1424417, at *1 (S.D. Ind. Apr. 24, 2012);
Aros v. United Rentals, Inc., Nos. 10 Civ. 73,
et al., 2012 WL 3060470, at *2 (D. Conn. July 26,
2012); Powell v. Lakeside Behavioral Healthcare,
Inc., No. 11 Civ. 719, 2011 WL 5855516, at *1 (M.D. Fla.
Nov. 22, 2011). “Unlike Federal Rules of Civil
Procedure Rule 23 class actions, FLSA collective actions
require similarly situated employees to affirmatively opt-in
[in order to] be bound by any judgment.” Cunha v.
Avis Budget Car Rental, LLC, No. 16 Civ. 10545, 2016 WL
6304432, at *2 (D. Mass. Oct. 26, 2016) (citation omitted);
Pike v. New Generation Donuts, LLC, No. 12 Civ.
12226, 2016 WL 707361, at *3 (D. Mass. Feb. 20, 2016).
Because individuals who do not opt in to an FLSA lawsuit may
bring their own separate suits, FLSA collective actions do
not implicate the same due process concerns as do Rule 23
actions. O'Connor v. Oakhurst Dairy, No. 14 Civ.
00192, 2015 WL 2452678, at *4 (D. Me. May 22, 2015)
(“The due process safeguards built into Rule 23 class
actions are not necessary in the FLSA collective action
context.”). The Court finds that a one-step settlement
approval process is appropriate here.
Settlement Notice attached to the Joint Stipulation of
Settlement and Release is approved. Counsel for the parties
shall make the necessary corrections to fill in the blank
dates in the Settlement Notice. The Settlement Notice
sufficiently informs Eligible Settlement Class Members of the
allocation formula, the steps Class Members must follow in
order to participate, the consequences of non-participation,
the estimated monetary amount to which they are entitled
under the settlement, the scope of the release, the time
Class Members have to cash their settlement checks (120 days
from the issuance of Settlement Checks), the request for
attorneys' fees and costs, and other terms of the
settlement. See, e.g., Lapan v. Dick's
Sporting Goods, Inc., No. 13 Civ. 11390, 2015 WL
8664204, at *3 (D. Mass. Dec. 11, 2015) (approving class
notice that, inter alia, described settlement terms
and options to participate); Michaud v. Monro Muffler
Brake, Inc., No. 12 Civ. 00353, 2015 WL 1206490, at *10
(D. Me. Mar. 17, 2015) (approving “notices [that]. . .
communicate accurate information about the suit in order to
enable potential collective action members to make informed
decisions about whether to participate” (internal
quotation marks omitted)); Bozak, 2014 WL 3778211,
at *3 (approving FLSA notice providing notice of settlement
terms and options facing class); Prena, 2015 WL
2344949, at *1 (approving one-step settlement notice when it
was “sufficiently in plain English to explain the
important points: the terms of the settlement, the allocation
formula, the amount of the entitlement, how to opt-in, and
that cashing the check is equivalent to releasing the
plan for sending the Settlement Notice as proposed by
Plaintiffs is approved.
Incentive Awards Are Approved
Incentive awards of $15, 000 to each Named Plaintiffs are
approved. The amount shall be paid from the Gross Settlement
Plaintiffs in class and collective actions play a crucial
role in bringing justice to those who may otherwise have no
access to judicial enforcement of their rights.
“Incentive awards serve to promote class action
settlements by encouraging named plaintiffs to participate
actively in the litigation in exchange for reimbursement for
their pursuits on behalf of the class overall.”
Bezdek v. Vibram USA Inc., 79 F.Supp.3d 324, 352 (D.
Mass.), aff'd, 809 F.3d 78 (1st Cir. 2015).
“Because a named plaintiff is an essential ingredient
of any class action, an incentive or service award can be
appropriate to encourage or induce an individual to
participate in the suit.” Scovil, 2014 WL
1057079, at *6. In wage and hour cases, “awards of $10,
000 and $15, 000 are not uncommon and on occasion reach $20,
000, $30, 000 and higher.” Id. (summarizing
cases). Incentive awards are particularly important in
employment litigation. See Bozak, 2014 WL 3778211,
at *4 (“[I]n employment litigation, the plaintiff is
often a former or current employee of the defendant, and
thus, by lending his name to the litigation, he has, for the
benefit of the class as a whole, undertaken the risk of
adverse actions by the employer or co-workers.”
(quoting Velez v. Majik Cleaning Serv., Inc., No. 03
Civ. 8698, 2007 WL 7232783, at *7 (S.D.N.Y. June 25, 2007)
(internal quotation marks omitted)); see generally
Nantiya Ruan, Bringing Sense to Incentive Payments: An
Examination of Incentive Payments to Named Plaintiffs in
Employment Discrimination Class Actions, 10 Emp. Rts.
& Emp. Pol'y J. 395 (2006); see also Shahriar v.
Smith & Wollensky Rest. Group, Inc., 659 F.3d 234,
244 (2d Cir. 2011) (recognizing benefits of plaintiffs
bringing wage and hour collective and class litigation
because, without them, other employees may not assert their
rights due to fears “of retaliation or of being
‘blackballed' in [their] industry . . . .”).
Incentive awards serve the important purpose of compensating
plaintiffs for the time and effort expended in assisting the
prosecution of the litigation, the risks incurred by becoming
and continuing as a litigant, the public nature of a
collective action filing, and any other burdens they sustain.
See e.g., Scovil, 2014 WL 1057079, at *6;
Aros, 2012 WL 3060470, *3. Accordingly, incentive
awards are commonly awarded to those who serve the interests
of the class. Scovil, 2014 WL 1057079, at *6; In
re Celexa & Lexapro Mktg. & Sales Practices
Litig., No. MDL 09-2067, 2014 WL 4446464, at *9 (D.
Mass. Sept. 8, 2014) (“The purpose of  incentive
awards is to reimburse the plaintiffs for their effort in
pursuing the claims on behalf of the entire ...